Emerging Debate on Abortion: Reply to G. Puppinck on EJIL: Talk!

Hopefully we can see an emerging debate on matters in relation with abortion on the blog of the European Journal of International Law (EJIL: Talk!).

As I earlier mentioned in this blog Gregor Puppinck, director of European Center for Law and Justice wrote a comment on abortion on demand and the case-law of the ECtHR. Mr. Puppinck expressed his opinion on matters related to abortion in a conservative "pro life" fashion which entails the disregard towards women's right to rospect of private life, the superseding interests of the embryo or the foetus and - what I called a terrifying solution - the consideration of the interest of the prospective father or grandfather. The author justified his reasoning by some kind of grateful tolerance on behalf of the Court towards abortion.

The response to the above mentioned opinion was published on EJIL: Talk!last week by three PhD Candidates from the Durham University Law School. Rumyana Grozdanova, Alice Panepinto and Konstantina Tzouvala call for a more sophisticated and nuanced approach to abortion in their post.

The authorsadmit that - even though there cannot be found a right to abortion within its case-law - the ECtHR "has systematically been pressing more conservative Member-States to respect their own legislation and relax the absolute prohibition of abortion under certain circumstances". They call for a holistic approach taking into accont not only the decisions of the Court but the ruling of the domestic courts as well. Relying on both domestic and ECtHR case-law they conclude that the Court does not impose "new or expanded obligations" upon Member-Statea, but rather re-affirms "obligations and rights protections which already form part of domestic legislation".

The authors also address the issue of the rights and interests of the father. They recall the decision of the European commission of Human Righta in H. v. Norway (Applicantion no. 17004/90) in which the Commission declared that the rights of the prospective mother shall be taken into account in the first place - as she is "the person primarily concerned by the pregnancy and its continuation or termination" - when assessing the rights of the potential father. A fact that was not mentioned in Mr. Puppuinck's post.

The overall conclusion of the post is as follows:

In the context of the abortion debate, it is crucial to appreciate the nuanced and comprehensive jurisprudence of the European Court taken as a whole and note the Court’s consistent efforts – if not quite yet successes – in taking into account domestically sensitive issues while balancing the rights afforded to all under the ECHR. While the Court has refrained from recognising a right to abortion under the ECtHR [...], it has at least sought to provide guidance on this issue and reaffirm rights currently existent in domestic legislation where these rights have not received effective implementation. (emphasis added)

ECtHR published updated factsheets

The Court has published updated factsheets on its website. Some of its latest judgments, such as Csoma v. Romania, P. and S. v. Poland, N.B. v. Slovakia and I.G. and Others v. Slovakia were included into the dokcuments.

For more information see:

- Reproductive rights

- Health

- Right to life

When a health carer becomes a torturer

On the 5th of March 2013 Juan E. Méndez, UN Special Rapporteur on torture called for an international debate on abuses related to health-care constituting torture or cruel, inhuman or degrading treatment or punishment.For this occasion the Special Rapporteur published his report deining several areas where torture may occure within the health-care settings.

Here is the summary:

The  present  report  focuses  on  certain  forms  of  abuses  in  health-care  settings  that may cross  a threshold  of  mistreatment  that  is  tantamount  to torture  or cruel,  inhuman or degrading  treatment  or punishment. It  identifies  the  policies  that  promote  these  practices and existing protection gaps.

By  illustrating  some  of  these  abusive  practices  in  health-care  settings,  the  report sheds light on often undetected forms of abusive practices that occur under the auspices of health-care policies, and emphasizes how certain treatments run afoul of the prohibition on torture  and  ill-treatment.  It identifies the scope of State's obligations to regulate, control and supervise  health-care  practices  with  a  view  to  preventing mistreatment  under  any pretext.

The  Special  Rapporteur  examines  a  number  of  the  abusive  practices  commonly reported  in health-care  settings  and  describes  how  the  torture  and  ill-treatment framework applies  in  this context. The  examples  of  torture  and  ill-treatment  in  health settings discussed likely represent a small fraction of this global problem.

What is of particular interest is that the Special Rapporteur makes express reference to judgments of the ECtHR e.g. R.R. v. Poland, P. and S. v. Poland and V.C. v. Slovakia an other relevant decisions of the Court.